III. | The International Court of Justice |
1. | FUNDAMENTAL PRINCIPLES |
1.7. | Jura novit curia |
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Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[pp. 24-25] For the purpose of deciding whether the claim is well
founded in law, the principle jura novit curia signifies that the Court
is not solely dependent on the argument of the parties before it with respect to
the applicable law (cf. "Lotus", P.C.I.J., Series A, No. 10,
p. 31), so that the absence of one party has less impact. As the Court observed
in the Fisheries Jurisdiction cases:
"The Court ..., as an international judicial organ, is deemed to take
judicial notice of international law, and is therefore required in a case
falling under Article 53 of the Statute, as in any other case, to consider on
its own initiative all rules of international law which may be relevant to the
settlement of the dispute. It being the duty of the Court itself to ascertain
and apply the relevant law in the given circumstances of the case, the burden of
establishing or proving rules of international law cannot be imposed upon any of
the parties, for the law lies within the judicial knowledge of the Court."
(I.C.J. Reports 1974, p. 9, para. 17; p. 181, para. 18.)
Nevertheless the views of the parties to a case as to the law applicable to
their dispute are very material, particularly, as will be explained below
(paragraphs 184 and 185), when those views are concordant.
[pp. 97-98] The Court notes that there is in fact evidence, to be
examined below, of a considerable degree of agreement between the Parties as to
the content of the customary international law relating to the non-use of force
and non-intervention. This concurrence of their views does not however dispense
the Court from having itself to ascertain what rules of customary international
law are applicable. The mere fact that States declare their recognition of
certain rules is not sufficient for the Court to consider these as being part of
customary international law, and as applicable as such to those States. Bound as
it is by Article 38 of its Statute to apply, inter alia, international
custom "as evidence of a general practice accepted as law", the Court
may not disregard the essential role played by general practice. Where two
States agree to incorporate a particular rule in a treaty, their agreement
suffices to make that rule a legal one, binding upon them; but in the field of
customary international law, the shared view of the Parties as to the content of
what they regard as the rule is not enough. The Court must satisfy itself that
the existence of the rule in the opinio juris of States is confirmed by
practice.